Judge: Mitchell L. Beckloff, Case: 23STCV00436, Date: 2023-03-15 Tentative Ruling

Case Number: 23STCV00436    Hearing Date: March 15, 2023    Dept: 86

LEVIN v. CLAPKIN

Case No. 23STCP00436

Hearing Date: 23STCP00436

[Tentative]                     ORDER CONTINUING TRO AND OSC RE PRELIMINARY INJUNCTION

[Tentative]                     ORDER REQUIRING PLAINTIFFS TO FILE A NOTICE OF RELATED CASE IN

                                           PROPER CASES

This matter is before the court on an Order to Show Cause re Preliminary Injunction (OSC). The court granted a temporary restraining order (TRO) on February 21, 2023 restraining Defendants from selling, transferring or hypothecating any real or personal property owned by the Nominal Defendant, Joslevin Realty Corp. of LA (the Corporation).

Defendants indicate in their response to the OSC they “have voluntarily, and in good faith, agreed that they will not engage in any of the conduct sought to be enjoined unless and until

(i) the issue of whether the Defendants have the right to vote Sheila’s shares as co-Trustees of the Sheila Trust has been adjudicated in Defendants’ favor or, (ii) alternatively, the Court enters an order or judgment in this action which does not validate Plaintiffs’ claim that Plaintiffs’ slate of candidates were elected to and now control the Board as of February 14, 2023, whichever of those two events occurs first.” (Response of Defendants to Order to Show Cause, filed March 3, 2023.)

The parties acknowledge a Notice of Related Case (Notice) “must” be filed in this matter. (Cal. Rules of Court, Rule 3.300, subd. (b).) In fact, Plaintiffs filed the Notice. They did not comply with the California Rules of Court (CRC), however, when they filed the Notice. Plaintiffs filed the Notice only in this action. CRC, Rule 3.300, subdivision (d) requires that the Notice be filed “in all pending cases listed in the notice and must be served on all parties in those cases.”

While Defendants may believe transfer of this matter to Department 50 is “imminent” and “virtually certain,” no party has provided notice to the judge hearing allegedly related matters about this newly filed action. Thus, no transfer order can be imminent where a Notice has not been properly filed to alert the judge who will make the related case decision of this action. This is especially true given that this matter is assigned to this department for all purposes.

Consideration of the merits in this action for purposes of an OSC will necessarily address issues raised in the petition for judicial supervision of the voluntary winding up of the Corporation (Case No. 23STCP00436) currently pending in Department 50 [the Winding Up Matter]. This court’s orders could conflict with orders made in the future in the Winding Up Matter. There are many overlapping issues this court would have to consider in connection with Plaintiffs’ ability to prevail on the merits that inform on the Winding Up Matter.

Accordingly, as Plaintiffs did not properly file the Notice and as Defendants did not correct Plaintiffs’ oversight, the court is inclined to continue the matter, leave the TRO in place (given Defendants representation they voluntarily are willing to do what Plaintiffs have requested) and order Plaintiffs to complete their service and filing of the Notice. If the matter is not related by the next court date, the court will proceed with the OSC hearing. The court will continue the OSC and trial setting conference to April 5, 2023 at 9:30 a.m.

The court acknowledges Plaintiffs desire a hearing on the election within 5 days. Nonetheless, the court may set the hearing beyond that date for good cause. Like the OSC, many issues raised in the Corporations Code section 709 petition overlap with matters currently pending in Department 50. Given the overlapping issues and Plaintiffs failure to properly serve and file the Notice, the court finds good cause to delay the matter. The court’s own calendar also provides good cause to delay the requested hearing beyond the five days contemplated by statute. The court does not find the Probate Code issues involved require additional time for counsel. Defendants alleged need for discovery is also questionable given the extensive history of litigation involving these parties and the Corporation.

The court also orders the parties to meet and confer to attempt to reach a stipulation concerning the sale or transfer of the Corporation’s assets. Given Defendants’ concession to voluntarily abide by Plaintiffs’ request, a preliminary injunction may be unnecessary.

IT IS SO ORDERED.

March 15, 2023                                                                      ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court